W. N. CONE, AS SHERIFF AND EX-OFFICIO ADMINISTRATOR OF THE ESTATE OF J. A. KNIGHT, DECEASED, PLAINTIFF IN ERROR,
v.
L. R. KNIGHT, DEFENDANT IN ERROR
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A sheriff acting as administrator of a deceased's estate appeals a default judgment entered in an assumpsit action. The Florida Supreme Court affirms, holding that even if the attorney who filed the default notice was simultaneously serving as circuit judge, such ministerial action would not warrant reversal, and defects in the pleading not raised below cannot be raised for the first time on appeal.
The court affirmed the judgment, holding that: (1) no proof was adduced showing the attorney and judge were the same person, and even if they were, the filing of a default notice is ministerial action that would not warrant reversal; and (2) defects in the declaration not raised below by demurrer or objection cannot be raised for the first time on appeal unless they are fundamental or jurisdictional.
“no proof whatever having been adduced to show that the attorney for the plaintiff and the judge of the circuit court were one and the same person”
Establishes that the appellant failed to prove the alleged conflict of interest between the attorney filing the default and the circuit judge.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceL. R. Knight sued W. N. Cone (sheriff and ex-officio administrator of J. A. Knight's estate) in assumpsit in Columbia County circuit court. Cone was p…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Jurisdictional Defect cases and more on FLexlaw
Per Curiam:
The defendant in error instituted an, action of assumpsit against the plaintiff in error in the circuit court for Columbia county, personal service was had on the defendant, and a default was duly entered against him on the Rule day in April, 1902, by the clerk of the circuit court for want of a plea or demurrer. Final judgment was also entered up by the clerk on the 11th day of November, 1905, for the sum of $212.70 damages and $3.03 costs. To this judgment a writ of error was taken, returnable to the present term. The first assignment is that “the court erred in entering a default upon the prsecipe of B. H. Palmer, the plaintiff’s attorney, after his appointment and qualification as judge of the circuit court.”
The record discloses that one B. H. Palmer signed the prsecipe for default as the plaintiff’s attorney, but what B. BO. Palmer we are not informed, no proof whatever having been adduced to show that the attorney for the plaintiff and the judge of the circuit court were one and the same person. The case of Perry -v. Bush, 46 Fla. 242, 35 South. Rep. 225, cited in support of this assignment, does not sustain it, for the reason that in the cited case B. EH. Palmer appeared in this court as an attorney seeking the granting of a motion, and being before us, we had it brought directly to our knowledge that he was the same B. EH. Palmer who had been appointed judge of the third circuit. Even if it had been made sufficiently to appear to us in the instant case that the attorney who filed the pwecipe for default was then such judge, which had not been done, such action was purely ministerial and, even if improper, would not of itself work a reversal of the judgment.
The second assignment is that “the court erred in entering a final judgment upon the default unautliorizedly entered for reasons stated in the first assignment of error.”
The record affirmatively shows that other attorneys than B. H. Palmer filed the praecipe for final judgment and had the same entered, therefore the reasons stated in disposing of the first assignment are equally applicable here.
The third assignment is abandoned.
The fourth and fifth assignments question the sufficiency of the declaration, but as no such points were raised below, either by demurrer or otherwise, they cannot be raised here for the first time, the defects, if any, not being fundamental or jurisdictional.
Judgment affirmed.
Shackleford, C. J., and Cockrell and Whitfield, JJ., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Heinberg Bros. v. Thompson, 46 Fla. 242 (Fla. 1903)
- Perry v. Florida V. Bush, 46 Fla. 242 (Fla. 1903)